To bring and win a legal claim against a government policy, a plaintiff must allege and prove that they were harmed by the policy in some way, even in cases alleging racial discrimination. So in the landmark Supreme Court case of Brown v. Board of Education, African-American plaintiff Oliver Brown had to present copious evidence, including testimony from several experts, that his third-grade daughter, Linda, had suffered and would suffer specific injuries because of racial segregation.

Strangely, however, plaintiff Abigail Fisher, whose racial discrimination case against the University of Texas (UT) was argued before the Supreme Court last October, has presented virtually no evidence that the school’s admissions policies, which take race into account as one factor among many, caused her actual harm. In fact, Fisher’s lengthy legal briefs devote few pages arguing that she would have gotten into the university but for her race.

Unlike Linda Brown, Abigail Fisher is white.

Fisher has asserted that she was harmed, claiming that “There were people in my class with lower grades who weren’t in all the activities I was in, who were being accepted into UT, and the only other difference between us was the color of our skin.”

Despite the surface appeal of her argument, it suffers from being rather light on facts, because the truth is that race almost certainly did not cost Fisher a spot at the University of Texas.

Fisher applied for admission to the university in 2008, when stiff competition meant that students who graduated in the top 10% of their class got 92% of the spots reserved for Texans. But Fisher, a Texan, was ineligible for the “Top Ten” admission program because her grades simply weren’t good enough—and she is not challenging her failure to meet these requirements.

Instead, Fisher (through her lawyers hired by conservative activist Edward Blum) says she should have gotten one of the remaining slots, for which competition was particularly ferocious. And that is where her case has serious problems.

She and other applicants were evaluated based on two numerical scores: one for grades and test results, the other (a “personal achievement index”) for two essays, leadership, activities, service and “special circumstances,” including social class, home environment, and race.

But Fisher’s scores, a 3.59 GPA and an 1180 SAT, were unexceptional for a highly selective flagship university like UT. In fact, UT’s non-“Top Ten” admissions had a higher rejection rate that year than did Harvard. Thus UT argues that even if no points had been awarded to any student on the basis of race, Fisher would have been rejected anyway.

Shorn of rhetoric and ideology, Fisher’s claim comes down to the fact that UT offered provisional admission to 47 students with lower test scores and grades than Fisher, but 42 of them were white, and only 5 were black or Latino. Furthermore, there were 168 black or Latino students with grades equal to or better than Fisher’s who were also denied admission that year.

Although Blum admits it is next to impossible to prove that the “race points” caused Fisher to be denied admission, he argues that “What we know is skin color is weighed and ethnicity is weighed by the University of Texas in their admissions process, and that alone is enough to strike down the plan.”

The Supreme Court, however, has never ruled that any accounting for race in college admissions is unconstitutional, and in 2003 held the opposite: ruling on a 5-4 vote that race could be one part of an admissions policy that seeks to promote diversity in the educational environment. The fact that some of the conservative justices frequently point to the “original intent or understanding” of the Constitution’s framers will not help Fisher, because the congressional drafters of the 14th Amendment themselves soon passed race-specific civil rights laws to protect the rights of former slaves and other blacks.

Supreme Court Justice Elena Kagan recused herself from the case because she was involved in it while she was serving as U.S. solicitor general, so the final decision will be made by eight justices.

-Matt Bewig

To Learn More:

A Colorblind Constitution: What Abigail Fisher’s Affirmative Action Case Is Really About (by Nikole Hannah-Jones, ProPublica)

Supreme Court to Hear Affirmative Action Case (by Mark Sherman, Huffington Post)

White Use of the Word “Nigger” Goes to Court (by David Wallechinsky and Noel Brinkerhoff, AllGov)

Supreme Court Hears Reverse Discrimination Case (by Noel Brinkerhoff, AllGov)